Aimei Company used Wang's photos in its company website and other publicity without Wang's permission. Wang believed that Aimei Company violated his portrait rights and reputation rights, and sued Aimei Company to the court.
The court of second instance finally ruled that the behavior of Aimi Company violated Wang's portrait right, but the claim that Wang's reputation right was infringed was not supported by the court.
【Basic case】
Wang is a young actor, singer and model.
Aimei Company uses Wang's photos in its website and external wall advertisements. On the website, next to Wang's photos is the text "Zhongnan Special Effects Conditioning" "26 years of focus on problematic skin conditioning for dark yellow skin, long spots, acne, Fundamental treatment for sensitive and allergic skin” etc.; in the advertisement on the external wall, next to Wang’s photo are the words “medical cosmetology”, “Korean makeup fixing technique”, “cell anti-aging”, “teeth whitening”, “beautiful skin carving” and “return to youth”. Beautiful customization" etc.
In the lawsuit, Wang claimed that Amy’s use of his portrait in the context of plastic surgery would raise doubts about whether he had undergone plastic surgery and reduce his social evaluation.
Wang believes that Aimei Company violated his portrait rights and reputation rights, and requested the court to order Aimei Company to disconnect the infringing link, stop the infringement, publish an apology in the newspaper, compensate for economic losses, mental damage relief money, and rights protection costs, etc.
Aimei Company argued that it was engaged in health care services, not a medical plastic surgery institution, and did not mention Wang's name, nor did it insult, vilify, or slander; after receiving the lawyer's letter, it deleted the relevant pictures in time, and the number of clicks on the website was very small and the scope of dissemination was limited. Limited, it will not mislead relevant audiences and reduce Wang's social evaluation.
[referee result]
The court of first instance held that: Aimi’s actions constituted an infringement of Wang’s portrait rights.
Regarding whether the right of reputation has been violated, Aimei published content on its website about "anti-ageing", "26 years of focus on problematic skin conditioning..." and "returning youth to beautiful customization" on its website with Wang's photo, which is enough to mislead relevant parties. The audience group caused bad social evaluation of Wang and infringed on Wang's right of reputation.
The court ordered Aimi to disconnect the link, delete the infringing photos, publish an apology statement on the website, and compensate Wang for economic losses, notarization fees, and mental damage relief.
Aimei Company refused to accept the judgment of the first instance and filed an appeal.
The Beijing No. 2 Intermediate People's Court held after hearing that: the first-instance judgment found that the behavior of Aimi Company violated Wang's portrait rights, and it was not inappropriate.
Regarding Wang's claim that the right of reputation has been infringed, although Aimei Company uses Wang's portrait with words such as "Zhongnan special effects conditioning", "26 years of focus on problematic skin conditioning..." and "medical beauty", but from the above-mentioned combination of pictures and texts Look, the use of this portrait is for commercial promotion of the problematic skin conditioning, treatment services and beauty services operated by Aimei Company. It is not clear that Wang has had plastic surgery or had skin problems before, and reputation is a reflection of human morality, The social evaluation of prestige, talent, credit, etc., Wang claimed that the behavior of Aimei Company will imply that the viewer Wang is the image spokesperson of Aimei Company, "It is because of the service of our project that her skin will become so. Good", which made viewers mistakenly believe that Wang had undergone plastic surgery, which in turn caused his social evaluation to be lowered, and the basis is not sufficient.
According to the judgment of the first instance, it was determined that the behavior of Aimei Company violated Wang's portrait right, and the judgment of the second instance finally revoked the mental damage compensation awarded by the court of the first instance based on the determination of the violation of the right of reputation, and maintained other contents.
【Judge's statement】
The perpetrator used the star's portrait in medical beauty advertisements without the consent of the star, which constituted a violation of the star's portrait right.
As for celebrity claiming to infringe on the right of reputation, the circumstances should be differentiated, and we cannot generalize:
It is common for operators to use star portraits in the commercial publicity of medical cosmetology, body shaping and other projects. The combination of pictures and texts is to highlight products and services. According to the general public's perception, it is not enough to determine that the promotional content is associated with the star's major cosmetic and plastic surgery projects. When the star can't prove that his social evaluation has been lowered because of this , it is not appropriate to determine that it constitutes an infringement of the celebrity's reputation; when the operator's use behavior focuses on the promotional content or the characteristics of a specific project or product, causing the general public to produce the star, it means that the project has been carried out, and the effect of the project is the celebrity. Recognition or associations such as the appearance of the body or face, such as bone reduction and face reduction, liposuction to lose weight, breast augmentation, etc., the use behavior at this time will give the public the impression that the star's face is "made" and the star's figure is "fake". In this case, if the operator fails to provide the corresponding factual basis for the star's major plastic surgery, it should be determined that it constitutes an infringement of the star's reputation right.
In addition, some medical beauty products or services are relatively special, such as the repair, correction, and plastic surgery of private parts of the body. Although they are not on the face, celebrity portraits or body images are used in the commercial promotion of such products or services. Considering traditional culture and values, it will indeed have a negative impact on the celebrity's reputation and bring negative evaluation to the celebrity. At this time, it can be determined that it constitutes a violation of the right of reputation.
Whether the unauthorized use of celebrity portraits in medical beauty promotion constitutes an infringement of the star's reputation right should be analyzed on a case-by-case basis, reviewing the constituent elements of the infringement of the reputation right, and grasping whether the consequences of the star's social evaluation decrease and whether the use behavior is related to the celebrity's social evaluation. causal relationship between.
To judge whether the social evaluation of celebrities is lowered, it should be comprehensively determined in combination with factors such as social background, economic development, value orientation, and the social image of the public figure itself.
In this case, although the celebrity Wang claimed that Aimei Company’s unauthorized use of his portrait to promote beauty services and other behaviors caused his social evaluation to be lowered, the court did not support it, but Aimei Company’s unauthorized use of other people’s portraits for commercial promotion also constituted a For the infringement of Wang's portrait right, Aimi will also bear the corresponding civil liability.
Operators should continuously improve legal awareness in the course of business development, and obtain corresponding permission and retain evidence when using the portraits and names of others, including celebrities, in order to meet the needs of publicity and promotion. Statements such as the small scope of dissemination and the timely withdrawal of complaints are not grounds for exemption from liability.
(Beijing Youth Daily/He Jiangheng Donghong Beijing Second Intermediate People's Court)